May 18, 2000

New Front in the Copyright Wars:
Out-of-Print Computer Games

By GREG COSTIKYAN

HE phrase "software pirate" conjures
up images of foreign sweatshops
mass-copying software or hackers
swapping files. But the Interactive Digital
Software Association is trying to shut down
a different type of pirate: people who just
want to play out-of-print games.

Publishers don't want to make old games
available. The market wants games that
push the limits of the processing and graphics capabilities of modern computers; a
game designed for the Atari 800 or Apple II
just won't sell at CompUSA.

But at more than 100 sites on the Internet,
you can download old out-of-print games,
along with emulators to let you run them --
the games include the original versions of
Atari 2600 games like Missile Command and
Space Invaders as well as landmark computer games like M.U.L.E. and Balance of
Power. These sites call the games abandonware: software for which publishers no
longer offer technical support.

Of course, the publishers don't view the
games as abandoned. "Copyrights and
trademarks of games are corporate assets," Nintendo says on its Web site. "If
these vintage titles are available far and
wide, it undermines the value of the intellectual property and adversely affects the
right owners. Emulator and ROM piracy is
competing head-on with Nintendo's current
systems and software."(ROM piracy is the
copying of game code from the old read-only
memory chips into files that can be stored
on a computer.) So Nintendo and other
companies want abandonware sites to shut
down -- they leave enforcement to the software association.

Their position is highly debatable.
Gamers don't go out and download games
for the original Nintendo Entertainment
System instead of buying new games for
Nintendo 64. Someone who wants to play an
older game is looking for an experience that
is different from what is available from a
modern game. And by keeping older games
alive, abandonware sites sometimes serve
the ultimate interests of publishers: a new
version of Frogger (first released in 1981)
was one of the Top 10 best-selling computer
games in 1999. Publishers became interested in re-releasing titles like Frogger precisely because they noticed that people were
still playing it.
Abandonware helped them
identify a new market niche.

Moreover, publishers provide no legal
way for gamers to get older games; the
market is too small to justify the effort.
So
gamers feel justified in making vintage
games available, despite the legal risks.

Older gamers' enthusiasm for games of
their youth is only part of the story.
In a
speech at the Game Developers Conference
in May in San Jose, Calif., Henry Jenkins,
director of the comparative media studies
program at the Massachusetts Institute of
Technology, called electronic gaming one of
the "lively arts for the 21st century." He
said that just as once-despised arts like jazz
and film were now accepted as legitimate,
so, too, would games be someday.

If Dr. Jenkins is right, if gaming is ever to
be understood as an art form that is worthy
of study and has valuable things to offer,
critics and academics and gamers must
come to appreciate the history and development of the form. That appreciation can be
created and sustained only if they have
access to the games of the past.

Publishers could fight
software piracy with a
vintage game museum.

Access to vintage games is important for
game designers, too. Just as novelists learn
from novels and artists from art, game
designers learn technique from the games
they play.

Their design repertory is
expanded through exposure
to games, but far too many
game designers are ignorant of games published
more than five years ago.
That is especially a problem now because the hit-driven, me-too nature of the
current market means that
there is far less variety in
the industry than there was
even a few years ago. There
is no way a company would
pay to produce a game like
Balance of Power, a serious
simulation of international
political dynamics by Chris
Crawford; M.U.L.E., a nonviolent economic game by
Dani Bunten; or the original SimCity, by Will Wright
(all best sellers in their
day), because those games
don't fit into accepted marketing categories.

"Preserving old computer games isn't
about sentimentality or retro trendiness or
collectibility," said Richard Carlson, a
game developer at Rogue Entertainment, in
an e-mail message. "It's about the history of
art, storytelling, music, animation, programming, level design and all of the other
disciplines involved in making classic game
entertainment."

A book printed on acid-free paper will last
for centuries. Film stock will last for decades, but even so, many early movies have
been lost forever. Game preservation is in
worse shape. Hardware and operating systems come and go. If you have a game
designed for an Apple II, you will have a
hard time figuring out how to run it.

Software is about as ephemeral as you
can get, yet preserving it is essential. Illegal
abandonware sites are providing a critical
service to game designers and scholars and
gaming enthusiasts. They do not, however,
provide a lasting and satisfactory solution
to the problem because they are illegal.

There may be another way. A group
called the Electronic Conservancy has periodically mounted a museum exhibition
called "Videotopia," which last appeared in
1999 at the Maryland Science Museum.

"Videotopia" consists of 75 old and new
arcade game machines, along with historical and background material. The Electronic Conservancy is devoted to preserving and
maintaining these machines, and its advisory board consists of some of the most prominent figures in the development of the arcade game industry.

Arcade gaming, however, is now about
one-eighth the size of the combined console
and computer gaming industries. It has
stagnated for more than a decade.

No one is doing anything similar to preserve console and computer games. And
doing so through a museum exhibition or
physical collection would be pointless; the
way to offer these games to the largest
possible audience is the way the abandonware movement does it: via the Web, providing emulators to allow people with new
computers and consoles to play the original
code. Ideally, you would do it one better,
however: you would do it legally, with a Web
site and with information to help people
install and play the games.

Call it Gamemuseum.org. Create it as a
nonprofit organization offering software
that enables people to play out-of-print
games -- with the permission of the owners.
Publishers could offer older products at no
cost to themselves, and scholars, designers
and fans of retro games could gain access.

Even if a publisher developed a new version of an older game, the older version
could serve, in a sense, as a demo for the
new one.
Players of the old version would be
very likely to search out and buy the updated, superior version.

Such a project would require financing, of
course, but probably not much. The enthusiasm that leads to abandonware sites could
be harnessed, providing volunteer labor to
build and maintain the online museum.

It would take an energetic person from
the nonprofit sector to raise the money and
build the organization, of course.

But surely
the effort would be worthwhile.

Any takers?

Greg Costikyan designs games, consults on
game industry business issues and writes
science fiction, and articles about games.